Nearly 50 candidates have applied for the Kalamazoo city manager position and the city commission and plans to review the applications during a closed-door session on May 7.

City commissioners say they have been paying attention to the news stories about the Portage superintendent search.

"It is my intent to avoid the situation they
had in Portage by all means," Kalamazoo Mayor Bobby Hopewell said.

Portage school officials say they had no intention of violating the law. But it appears they were unaware of court rulings that forbid closed-door discussions to
narrow the pool of candidates and ban private interviews of
candidates or potential candidates, even if done by a subcommittee or a single board member.

As a result, much happened behind the scenes in recent weeks in the Portage superintendent search: The board decided privately that they were unhappy with their initial candidate pool, recruited Brighton Superintendent Greg Gray to apply and held private conversations with him before naming him as their sole finalist.

Gray has since withdrawn his name, and Portage officials say they are now working with legal counsel to ensure they stay within the confines of the Open Meetings Act as they move forward in the search process.

Experts on the Open Meetings Acts who were interviewed by MLive/Kalamazoo Gazette also say there are elements of the search process in the city of Kalamazoo and KRESA that could be problematic.

In the case of the city, that involves the plan to give commissioners a packet
with applications and resumes of city manager candidates in advance of the
May 7 closed session to review the applications.

Jane
Briggs-Bunting, head of the Michigan Coalition for Open Government, questions the need for a closed session if commissioners can review the candidates on their own.

"Why are they going into closed session if
they've already reviewed the candidates?" she said. "It's problematic
because it's likely to lead to discussion" about narrowing the pool — a
deliberation that must occur in a public forum.

Kalamazoo City Attorney Clyde Robinson did not respond to requests for comment on Briggs-Bunting's statement.

Experts also raise questions about the KRESA process, where the board is expected to discuss job applicants and name finalists at a May 16 meeting.

In regards to the Open Meetings Act, the issue in KRESA is the process used to recruit applicants.

KRESA Board President
Delores Myers said the board obtained a list of potential candidates from the Michigan Association of Intermediate School Boards.

Myers said the five-member board then divided up the list and had a trustee or two meet with potential candidates to decide who
to encourage to apply for the job.

But that practice appears to be
expressly forbidden by the Michigan Supreme Court in a
lawsuit challenging the process used by University of Michigan to hire
James Duderstadt in 1988.

In that case, individual U-M trustees met with potential candidates and used those discussions to nominate candidates for consideration.

In its court ruling, the Supreme Court said all interviews with candidates must be conducted in public, including the
pre-application talks: "With regard to the interviews, or 'visits' as termed
by the board, there is no statutory exception permitting a subcommittee to
conduct closed interviews. On the contrary, the Legislature expressly mandated
open interviews." (Click here to read 1993 court decision.)

"I don't see any problem in soliciting people to apply," Briggs-Bunting said. "That is part of the responsibility" of being on a public board.

But lines get crossed when public officials use those private discussions to help them decide on the merits of candidates, including who should apply, Briggs-Bunting said.

"You're dancing around the open meetings law," she said. "It's certainly a questionable act. ... if you're handpicking people ahead of time."

She and other experts interviewed by MLive/Kalamazoo Gazette said that many public officials do not understand the nuances of the Opening Meetings Act in regards to candidate searches.

"They may do this only once" during their time in office, Briggs-Bunting said about hiring a new leader. "I think public bodies often want to do the right thing, but they don't know the law."

Michael Wilmot, president/CEO of the Michigan Leadership Institute,
which consults on leadership searches for public institutions, said he always advises his clients to talk with their legal counsel at the beginning of the search process so that they understand the law.

That appears not to have happened in KRESA and Portage schools, which do not have legal counsel on staff. The city of Kalamazoo is relying on Robinson.

The fact is, experts say, court rulings on the Open Meetings Act severely restrict activities that can occur in private when hiring the leader of a public entity, and the rules that board normally use in discussion of personnel matters in closed session or activities outside a quorum do not apply here.

In fact, the only activity allowed in closed session is a review of the
applications and resumes of candidates who have specifically requested
confidentiality, said Brigg-Bunting, Wilmot and Robin
Luce-Hermann, legal counsel for the Michigan Press Association.

Any deliberations, discussions and decisions by a public board in
regards to hiring a new leader must occur in a public forum, they say.

Their interpretation of the law aligns with a four-page memo distributed by the Michigan
Association of School Boards to public boards seeking guidance on hiring a new leader. (Click here to read MASB guidelines.)

"No question" the law is very restrictive about what can occur behind closed doors, Wilmot said. "Any discussion has to occur in a public forum."

When he is consulting on a search, Wilmot said, he sets strict rules about closed session to review applications.

"They can ask me
questions about the candidates, but they can't talk to each other," Wilmot
said. "They cannot interact with each other. They certainly can't make
any determination in private" about the caliber of the candidates.

In Portage, acting Superintendent Rob Olsen issued a written statement saying that "at
no time did our trustees believe they were violating the open meetings act and
there was certainly no intent to violate or circumvent the act."

"At
the time of the meetings with Dr. Gray, he was not a candidate for superintendent," the statement said. "Our board members
reached out to him as a highly recommended individual in the hope he would
become a candidate.

"Subsequently,
it appears that experts may disagree on how the open meetings act and
applicable case law apply to this situation. Therefore, our legal counsel is
reviewing the matter. The outcome of that review may impact how we conduct our
search as we move ahead," the statement said.

Wilmot said that he feels public entities take the responsibility of hiring a new leader very seriously, and their focus is trying to find "the highest-caliber" candidate.

At times, he said, it can feel like the rules requiring them to do that search in such a public fashion can hinder that goal.

"You may be denied access to the best candidates" because they don't want to jeopardize their current position by going through a public hiring process elsewhere, Wilmot said.

Still, Wilmot said, "I like the idea of public interviews. I think it's good for candidates and it's good for the public. You develop a better relationship between the candidate and the public, which means the person who is hired has a better chance of success versus a person who walked in cold."

Briggs-Bunting and Lure Hermann agreed that is great value in a public process.

"A closed process hurts taxpayers," Brigg-Bunting said. "When light is shined into the search process, you are less likely to get surprises."

Luce Hermann said it may be uncomfortable to have candid discussions in public with an job candidate about the issues and challenges in a school district or city.

But if those discussions aren't happening in public, "what does that say about how you are otherwise operating?" she said. "Taxpayers have a right to understand what the issues are. There is no reason to hide."